Irreparable Injury and Extraordinary Precaution: The Safety and Feasibility Norms in American Accident Law

Abstract

The tort law of negligence is one of our principal forms of protection against accidental physical injury. But it is underspecified in one respect and incomplete in another. The common law of negligence is underspecified in that its norm of reasonable care does not register clearly enough the fact that it is reasonable to take greater precautions against some kinds of physical injuries — severe and irreparable ones — than it is against other kinds — mild and fully repairable ones. The common law of negligence is incomplete in that it relies on the award of money damages to induce prospective injurers to exercise reasonable care prospectively, yet does not so much as attempt to fully monetize the harm done by unreasonable risks that result in death.